Mr. Grieve: The hon. Gentleman makes a good point, and I accept that subsection (6) provides a let-out clause. That is as far as the Government have been willing to go.

In response to the comment by the hon. Member for Edinburgh, North and Leith, let me say that we are not driving a coach and horses through the principle. We are asking for a small extension of the principle so that, in addition to the provision in subsection (6), the judge is allowed to exercise discretion throughout the process. It would make for better drafting, which would better meet the needs of justice. This is not an enormous issueissues in Committees are often notbut it may have telling consequences.

Mr. Lazarowicz: Does the hon. Gentleman accept the important principle of legal certainty, as well as the principle of allowing courts discretion? Does he accept that substituting assumptions with criteria could lead to different courts applying the tests in different ways? That could lead to injustice, whereas the provision for assumptionswith the qualification in subsection (6)(b), which allows the court not to make the required assumption if

``a serious risk of injustice''

is shownwould achieve legal certainty in a way that his formula would not.

Mr. Grieve: I accept the hon. Gentleman's point, but the risk of that happening is not significant enough to make the amendments objectionable. They may lead to a slightly greater degree of variation, but that is not something that I would necessarily worry about, as all cases turn on their own merits. I am concerned that the Bill's attempt to impose uniformity may not meet the interests of justice. Ultimately, we must consider that.

I also accept that we must consider the desirability in terms of public policy of laying our hands on the assets of criminalsalbeit not just any old assets. It is worth the Committee remembering that. Listening to the debate, I sometimes think that the measure is punitive and designed simply to remove criminals' assets. [Interruption.] The Minister shakes his head in disapproval and says, ``No, it isn't.'' I am glad to hear that. However, listening to some of the Back Bench contributionsalthough not that of the hon. Member for Edinburgh, North and Leithone gets the impression that that is what the Bill is about. If it is not, we must ensure that, once a criminal lifestyle has been assumed, the system set up includes criteria that allow a greater degree of judicial flexibility than the measure provides. At the risk of repeating myself, that is especially necessary because we are widening the categories of individuals and offences that will be dealt with under the measure so much.

I may be wrong about that. In practice, given the discretion of the director and the prosecutor, exactly the same old category of offender may be targeted. If so, the Minister would simply have to say that the legislation had not worked, because it is clear that he wants to cast the net much wider. Those are also compelling reasons for widening some of the safeguards and judicial discretion to ensure that justice is done.

Mr. Davidson: I accept that this is an important point, but I am having difficulty in grasping the circumstances in which the hon. Gentleman wants the provision to be exercised. Changing the word ``must'' to ``may'' would imply that there were circumstances in which the provision might not apply. Will he clarify the circumstances in which he would look to a judge not to proceed down the road set out in the Bill?

Mr. Grieve: I can envisage circumstances in which the judge might decide that in the interests of justice, the public need to confiscate assets should not be proceeded with. It is difficult to pick out individual instances, but let us take one possible example. Someone who has, or has had, a criminal lifestyle may, as a result, have an illness or have suffered a head injury that makes it difficult for him to rebut the assumptions.

I believe that in those circumstances, a judge would be entitled to have the discretion at an early stage to say that justice simply cannot be done in this case. He might say that the way in which the system works, with the reversal of the burden of proof, makes it impossible for him, in the light of the evidence before him, to reach a conclusion when the defendant is at a serious disadvantage in rebutting the assumptions. This sensible measure would allow the judge to do just that.

Mr. Davidson: As I understand it, that was the Saunders defence. Ernest Saunders was not proceeded against, because he was alleged to have Alzheimer's disease, but once he was released from the court, he miraculously recovered. Does the hon. Gentleman not see that we do not want a device to enable people to escape in such circumstances? The defendant would not be unrepresented he would presumably have lawyers defending him by the score, who could articulate his case on his behalf.

Mr. Grieve rose

Mr. Mark Field rose

The Chairman: Order. Hon. Members must not intervene on an intervention. I call Mr. Grieve.

Mr. Grieve: The example of Mr. Saunders is an exceptionally bad one. I am sure that the hon. Member for Glasgow, Pollok would not wish to be unfair, because Mr. Saunders was subsequently completely exonerated through the appeal process.

Mr. Field: Indeed. As I am sure my hon. Friend was about to continue, the Saunders case is a particularly bad example, because he was found guilty and convicted. The defence of Alzheimer's disease came later, to get him out of prison after his conviction. There was no question of its being used during the trial. As I am sure my hon. Friend will point out, there are other reasons why the Saunders case is not the best example to use.

Mr. Grieve: In response to

Ian Lucas: May I return the hon. Gentleman to subsection (6) and the example that he gave? I suspect that that is slightly unfair of me, because he provided the example when he was on his feet, but would this not fall squarely within subsection (6)(b)? The Bill gives the court discretion to deal with the case to which my hon. Friend referred.

Mr. Grieve: It is not unfair to require me to think on my feet. That is what I have been paid to do for a number of years. If I cannot do that, I had better not come before the Committee. On the point made by the hon. Gentleman, I accept that that could happen under subsection (6). As I understand the subsection, the judge must go through the whole exercise before reaching the conclusion, rather than being able to make it at the outset, which is when one should be able to make it. That may be the full difference that lies between us, so that the issue is not as big as it appears. Nevertheless, the wording that we propose is better than the existing wording.

Mr. Paul Stinchcombe (Wellingborough): Can the hon. Gentleman imagine any circumstance in which he would want the judge to exercise discretion other than where the assumption was incorrect, or where there was a serious risk of injustice?

Mr. Grieve rose

Mr. Foulkes: He is speechless.

Mr. Grieve: I am not trying to think on my feet for a moment.

The Chairman: Order. Hon. Members must not heckle, particularly Ministers.

Mr. Grieve: I had those criteria in mind as the sort of criteria in relation to which the amendments have an advantage. I do not want to say that there are no others.

Mr. Hawkins: I think that my hon. Friend would agree that one difficulty in addressing some of the concerns that are being expressed from the Government Back Benches is that we do not want to offend you, Mr. McWilliam, and stray on to the third group of amendments. However, amendment No. 76 in the third group deals with the extra provisions that we, and organisations such as Liberty, feel should be added to subsection (6). That will help us to deal with the point when we come to it.

The Chairman: Order. Because of where the amendment is placed, it may help Members to have a clause stand part debate on it if they wish, because it covers the whole clause. I am, therefore, quite relaxed about it.

Mr. Grieve: I am grateful for that, Mr. McWilliam. The lack of a rational connection between the facts proved leading to the trigger convictions and the facts produced for consideration under the assumptions could be something else that the judge considered to be ridiculous. That is another area in which there would be a judicial safeguard. That falls within the injustice category that I described earlier, although I accept that I took the example of a defendant who was at a grave disadvantage to rebut the assumptions, for some justified and bona fide reason.

In those circumstances, and on the basis of our amendments, it would be easier to do justice. Where is the downside? When considering such matters, one should always be minimalistic when interfering with established principles of justice. One should start to give greater powers, especially to prosecutors and directors, to reverse burdens of proof, and to bring in assumptions, only if there is some compelling necessity to do so.

In the comments made by the hon. Member for Edinburgh, North and Leith, there did not seem to be many downsides. I trust the judiciary to do justice in such circumstances. It is a fantasy, however, to feel that that will somehow open a door, through which a torrent of people will escape the process of confiscation. The amendments have merit on that basis alone.

Norman Baker: On a point of order, Mr. McWilliam. I should like your guidance on how we are to proceed with the amendment and the clause. In my opening remarks, I studiously stuck to amendment No. 24, as I did not wish to be ruled out of order, to the extent that I did not give as full a reply as I would have liked to an intervention by an Opposition Member on amendment No. 26. I should be happy for a safeguard to be inserted in either amendment No. 24 or amendment No. 26, but I have not yet argued the merits of amendment No. 26.

Would it be helpful if amendments Nos. 24 and 26 were debated together, and I moved amendment No. 26 formally, or shall we first conclude our discussion on amendment No. 24, and deal with amendment No. 26 subsequently?